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HomeMy WebLinkAbout1983-0036.Edwards.83-07-08IN THE MATTER OF AN ARBITRATION 4 Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Crievor: N. Luczay Grievance Officer Ontario Public Service Employees Union For then Employer: J.J. O’Shea Staff Relations Administrator Ministry of Consumer and Commercial Relations Hearings: April 13, 1983 May 18, 1983 OPSEU ‘(George Edwards) and Grievor The Crown in Right of Ontario (Ministry of Consumer and Commercial Relations) Employer P.M. Draper Vice Chairman P. Craven Member A.G. Stapleton Member -2- The Crievor, George Edwards, grieves that, in contravention of Article 4(3) of the Collective Agreement, he was denied selection for the position of Purchasing Officer, classified Purchasing Officer 1, and he requests appointment to that position as of the date of appointment of the present incumbent and compensated for the loss of pay in the interval. At the time of the competition the Grievor had been employed as Accommodation and Supply Clerk, classified Clerk 5 General, in the Real Property Registration Branch of the Ministry since March, 1981. His two prior positions were as Stock Control Clerk and then as Senior Stock Clerk with two other ministries. His continuous service date is February 20, 1973. At the time of the competition Robert Mallory, the successful applicant, had been employed for some six months as Purchasing and Assets Control Clerk, classified Clerk 3 General, in the Finance, Systems and Administrative Services Branch of the Ministry. His two prior positions, both in the Ministry, were as Supply Clerk, classified Supply Clerk 2 and then as Inventory Control Clerk, classified Clerk 3 General. Hi continuous service date is September 20, 1973. The Competition Announcement contained the following information concerning the vacant position: -3- Summary of Job Duties: Required by the Ministry of Consumer and Commercial Relations, to procure goods and services for user organizations consistent with the policies and procedures of the Ministry. Duties include: re- solving problems with suppliers, issuing competitive tenders, developing sources of supply; utilizing standing offers and agreements; working closely with requisitioners to solve problems and perform other related duties. Qualifications: Good knowledge of Government purchasing operations including methods of obtaining price and quality data; ability to analyse and recommend economical and satisfactory purchases, effective communication skills both oral and written; pro~ven ability to exercise tact and diplomacy and to maintain effective working rela- tionships. Enrollment or completion of a program of studies in purchasing an asset. The competition was restricted to employees of the Ministry in Toronto. The chairman of the Selection Committee was Thomas Boyle, Manager of Purchasing, Purchasing and Supply Section of the Ministry, the section in which the vacancy occurred and in which Mallory was employed. The other two members were ~Romeo Fernandez, Senior Manager, Administrative Services and Joanne Spiewak, representing the Personnel Branch of the Ministry. The closing date for applications was November 15, 1982, and all applicants were interviewed on~ November 18, 1982. The questions to be put to applicants were composed by Boyle and were approved by Fernandez and the Personnel Branch. The members of the Selection Committee marked the scores of applicants independently and when all applicants had been interviewed the scores were compared and the results entered on a -4- Staff Competition Selection Record form. It is common ground that Mallory and Edwards were the best of the applicants and, in addition, there are no other grievances arising from the competition. It Is therefore the conduct of the Selection Committee as it affects those two applicants that is to be judged. In the interviews, applicants were asked a total of I9 questions divided into four categories. General purchasing knowledge, 6 questions worth 30 points and print procurement knowledge, 4 questions worth 20points, dealt with the technical aspects of the position. Communications, 2 questions worth 25 points and personal suitability, 7 questions worth 25 points, dealt with its non-technical aspects. Mallory received scores of 93, 95 and 85 points from the three members of the Selection Committee for a total of 273 points and Edwards received scores of 79, 91, and 75 points for a total of 245 points. By category, Mallory received scores of 89, 60, 59 and 65 points from the three members and Edwards received scores of 80, 44, 57 and 64 points. Mallory was thus rated first and Edwards second by alJ three members and it was agreed amongst them that Mallory was “the better candidate”. It is argued for the Grievor that the questions placed undue emphasis on the print procurement component of the position and that this was unfair because the Competition Announcement made no mention of this component. Of the 28 points by which the Griever’s total score fell below that of Mallory, 16 were in the print procurement category. -5- We are not persuaded that a Competition Announcement can reasonably be required to do more than to describe concisely and in general terms the content of and the qualifications for the position to be filled. Further, the Crievor had gained some knowledge of the Purchasing Officer’s duties through visiting the Purchasing Section and cannot have. been unaware of the print procurement component. It is also the fact that the applicable Position Specification and Class Allocation Form assigns to print procurement 30 per cent of the duties and responsibilities of the position. We are told that these forms are available to applicants for vacant positions. Parenthetically, we can think of no reason why they should not be provided to applicants as a general practice. Our principal criticism of the conduct of the members of the Selection Committee is not that they made a faulty finding as to the relative qualfications and ability to perform the required duties of Mallory and Edwards but that they did not, in fact, direct their minds to that issue. .This seems to us to be a fatal flaw, notwithstanding that we have no fault to find with the composition of the Selection Committee, the conduct of the interviews, the questions put to the applicants, the points assigned to the various questions and categories, or the scoring procedure. Surely the determination of the issue of relative equality is crucial to the proper administration of Article 4(3) of the collective agreement. We are satisfied, on the evidence, that the Selection Committee, based on Mallory’s higher total score, decided only that he was a better applicant than Edwards and did not go on to consider, based on all the material before them, whether or not there was relative equality as between the two. -6- A second and related source of our concern is the apparent failure of the Selection Committee to make full use of the material available to it. Since the Purchasing Officer I classification is the entry level of the Purchasing Officer series,.it is perhaps not to be expected, much less required, that applicants have a substantial background in the purchasing function. But it should always be the object of any selection process, subject to the provisions of Article 4(3) of the collective agreement, to identify the person best fitted to fill a vacant position. In particular, the Selection Committee here should not have contented itself, as it appears to have done, with simply noting that both Mallory and Edwards had completed the entry qualification course, an elementary program referred to as Module I offered within the public service. Since there was included in the Competition Announcement the statement that “Enrollment or completion of a program of studies in purchasing an asset”~ which, incidentally, is taken word for word from the applicable position specification, the Selection Committee, in our view, should have considered &l the information before it, concerning the education and training of the two applicants relevant to the required duties and made a decision as to ~the weight to be given to it. The Grievor made reference in his testimony to what he regarded as instances of intimidation and discrimination by Boyle and the then Purchasing Officer and to his belief that there was bias in the selection process. As to the first allegation, it appears to have its basis in the Griever’s emotional reaction to certain jocular, if heavy-handed, remarks directed to him rather than in any overt show of prejudice by -7- those concerned. As to the allegation of bias, it was appropriately investigated within the Ministry at the request of the Grievor and found to be unsubstantiated. Neither allegation is supported by the evidence before us and both must be dismissed. We have concluded that the appropriate remedy here is to require the Selection Committee to carry out its proper responsibilities. The matter is therefore remitted to the Selection Committee with the direction that it reconvene and review the information and documentation regarding Mallory and Edwards that was before it at the time of the competition, including the material submitted by them and’the results of their interviews. Based on that review the Selection Committee will determine, as required by Article 4(3) of the collective agreement, whether or not the two applicants are relatively equal in qualifications and ability to perform the required duties of the position in question and, if it is determined that they are, will give consideration to length of continuous service. In accordance with the result, the Selection Committee will either confirm the selection of Mallory or select the Griever for appointment to the position of Purchasing Officer with effect from the date of this decision, in which event the Employer will compensate the Grievor for loss of pay, if any, in the interval since the appointment of the present incumbent. ‘Robert Mallory was present at the hearings as a witness and chose not to make representations to the Board on his own behalf. -8- DATED at Toronto, Ontario this 8th day of July 1983. qii.+i k& P. Craven Member A.G. Stapleton ‘Member 6: 2310 6: 3100 6: 3210